Fishel Co. v. Republic Western Ins.

2011 Ohio 2166, 948 N.E.2d 535, 163 Ohio Misc. 2d 1
CourtCourt of Common Pleas of Ohio, Franklin County, Civil Division
DecidedJanuary 26, 2011
DocketNo. 09-CVH-08-12052
StatusPublished

This text of 2011 Ohio 2166 (Fishel Co. v. Republic Western Ins.) is published on Counsel Stack Legal Research, covering Court of Common Pleas of Ohio, Franklin County, Civil Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fishel Co. v. Republic Western Ins., 2011 Ohio 2166, 948 N.E.2d 535, 163 Ohio Misc. 2d 1 (Ohio Super. Ct. 2011).

Opinion

Frye, Judge.

I. Introduction

{¶ 1} This case concerns a consent-to-settlement clause in an insurance policy written to backstop a self-insured business under Ohio’s workers’ compensation system. The Fishel Company was responsible for employee claims up to [3]*3$800,000. To protect itself above that self-insured retention, Fishel purchased a policy entitled “Excess Workers’ Compensation Policy” sold by Republic Western Insurance Company.

{¶ 2} James R. Richards was a longtime Fishel employee. Nearly 20 years after Richards was injured in 1989 — and after a knee prosthesis had been installed — Richards’s orthopedic surgeon addressed continuing pain, swelling, weakness, restriction of motion, and the potential that Richards might even lose part of his leg if he did not cease work. Faced with that medical evidence, his employer executed a standard Industrial Commission form “Agreement as to Award for Permanent Total Disability.” Fishel did not, however, file an “SI-42” settlement-notification form with the Bureau of Workers’ Compensation or invoke R.C. 4123.65, which addresses settlements.

{¶ 3} Republic Western and Fishel dispute whether executing the agreement as to permanent total disability ran afoul of policy language that precluded coverage for a “voluntary settlement” made without the insurer’s consent. Both parties agree that no Ohio court has interpreted such a voluntary-settlement exclusion.

II. The Factual Record

{¶ 4} Counsel cooperated in filing a thorough stipulation of facts, for which the court is grateful. In addition, brief depositions were taken from Richards and from Craig Mathes, director of safety and human resources at Fishel. When cross-motions for summary judgment were argued earlier this month, both sides clarified several factual matters for the court (consistent with the record) and agreed that no genuine dispute of material fact exists.

{¶ 5} Richards was injured in 1989 and remained Fishel’s employee thereafter. The company was aware of limitations on Richards’s ability to work but respected him as a valuable employee. However, by early 2007, Richards’s orthopedic physician, Dr. Louis Unverferth, wrote an opinion letter reviewing the case and concluding that Richards was permanently and totally disabled because of persistent difficulties related to the old knee injury. Richards also brought to Fishel’s attention that his orthopedic doctor had advised him that if he did not stop work, he might even lose his leg. Recognizing that Richards had been with Fishel for many years and qualified for long-term and short-term disability benefits, payout of vacation, continuation of health insurance, and other benefits that needed to be integrated into the conversation, Fishel consulted legal counsel. Everyone at Fishel was satisfied that Richards had a very legitimate claim, so a [4]*4plan was made to coordinate all of Richards’s benefits, including workers’ compensation benefits.

{¶ 6} In considering whether the resulting resolution of Richards’s claim for permanent total disability was a “settlement,” it is relevant that over the 18 years since Richards’s claim first arose, it had never been contested by Fishel. According to Mathes, given that background, the possibility of contesting Richards’s permanent disability before the Industrial Commission in 2007 never came up.

{¶ 7} Fishel and Richards signed a standard-form Industrial Commission document entitled “Agreement as to Award for Permanent Total Disability.” They did so without filing a form SI-42 with the BWC, but also without prior consent from Republic Western. As a consequence of the agreement, Fishel became obligated to pay benefits for permanent total disability to Richards for life under workers’ compensation rules. This ran the cost of the claim above Fishel’s $300,000 self-insured retention, triggering its request for coverage.

{¶ 8} The parties have not contested this case (as such cases often are contested) over whether there was actual prejudice to the insurer from lack of consent to settle. Instead, the parties agree that the issue is simply whether Fishel made a “voluntary settlement” as that term is used in the policy.

III. The Policy Provision

{¶ 9} Republic Western sold a policy entitled “Excess Workers’ Compensation Policy” to Fishel in 1987. That particular policy follows the Richards claim indefinitely because it was in force when he first sustained injury.

{¶ 10} The policy had a specific focus. It did not address general business liability as would a comprehensive general liability policy or other more common business insurance. Thus, the declarations page specifically stated: “This policy covers the Workers’ Compensation law of each of the following states: * * * OHIO * * The insuring agreement specifies that the policy applies to loss sustained because of liability imposed by the “Workers’ Compensation Act of each state named” on the declarations page. The first definition in the policy is of “Workers’ Compensation Act,” a term used repeatedly thereafter in the policy.

{¶ 11} Republic Western set out a number of specific numbered exclusions. The provision prohibiting “voluntary settlement” without the consent of the insurer is not among them. Instead, it was placed in a separately numbered paragraph entitled “Administration and Reporting of Claims.” That clause initially addressed “immediate notice” of any occurrence causing serious injury to two or more employees; a fatality, spinal-cord injury, bad burn, or other obviously serious injury; or the reopening of a case in which further awards [5]*5might impose liability on the insurer. No argument is made here that Fishel did not report the Richards claim in an appropriate or timely fashion.

{¶ 12} The paragraph entitled “Administration and Reporting of Claims” continues: “The Insured shall not make any voluntary settlement or voluntarily make a lump-sum payment or commutation or one-time payment in lieu of periodic indemnity payments to Employees or their dependents involving loss to the Company except with the written consent of’ the insurer’s agent. A few weeks after the policy went into force, Republic Western issued an amendatory endorsement to it. That endorsement contained identical language relative to a voluntary settlement. However, neither the basic policy nor the endorsement defined the term “voluntary settlement.”

IV. Settlements under Ohio Workers’ Compensation Statutes

{¶ 13} Ohio employers may submit an application for approval of a final settlement under a specific statute in the workers’ compensation code. R.C. 4123.65. For self-insured companies, the forms used to do so are referred to as SI-42 (“Self-Insured Joint Settlement Agreement and Release”) and SI-43 (“Acknowledgment of the Self-Insured Joint Settlement Agreement and Release”). The Richards file at the Bureau of Workers’ Compensation contains neither form. Furthermore, “no other evidence” is in the file indicating that it “has been settled by and between the injured worker and the self-insuring employer” according to the BWC’s director of the Self-Insurance Department. (Tom Woodruffs affidavit, filed with the complaint.)

{¶ 14} R.C. 4123.65 was amended in 1993 to allow more latitude for self-insured employers to directly negotiate settlements with employees. Estate of Orecny v. Ford Motor Co.

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Cite This Page — Counsel Stack

Bluebook (online)
2011 Ohio 2166, 948 N.E.2d 535, 163 Ohio Misc. 2d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fishel-co-v-republic-western-ins-ohctcomplfrankl-2011.